Tripura High Court
Smt. Sangita Saha vs Smt. Parul Bala Karmakar on 30 June, 2021
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HIGH COURT OF TRIPURA
AGARTALA
MAC App No. 81/2019
1. Smt. Sangita Saha.
Wife of late Dulal Kanti Saha Alias Maran
2. Smt. Ankita Saha alias Puja (Minor).
Daughter of late Dulal Kanti Saha alias Maran
3. Smt. Bakul Bala Saha.
Wife of late Hari Das Saha, All of Vill- Salgarah, P.S. -R.K.Pur, Udaipur,
District- Gomati Tripura.
............... Appellant-Claimant Petitioner.
Versus
1. Smt. Parul Bala Karmakar,
Wife of late Narayan Karmakar,
2. Sri Badal Karmakar,
son of Late Narayan Karmakar.
3. Sri Biplab Karmakar,
son of Late Narayan Karmakar
4. Sri Sankar Karmakar,
son of Narayan Karmakar
5. Sri Chandan Karmakar,
son of Late Narayan Karmakar
6. Sri Nandan Karmakar,
son of Late Narayan Karmakar
7. Smt. Rama Karmakar (Majumdar),
Daughter of Late Narayan Karmakar,
All are substituted by the original OP no. 1, Narayan Karmakar
S/O.Late Purna Chandra Karmakar of Salgarah, P.S. R.K.Pur,
Udaipur, District- Gomati Tripura. (who was the Owner of Vehicle
bearing No. TR-03-3888 Cruiser)
8. Habizur Rahaman,
Son of Sekbul Rahaman of Khilpara, P.S. R.K. Pur, Udaipur Gomati
Tripura.(Driver of TR-03-3888 Crusier)
9. Oriental Insurance Company Ltd.,
Udaipur Branch, Udaipur, PS. R.K. Pur, District- Gomati Tripura.
............... Respondent(s).
MAC App. No.81/2019.
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BEFORE
THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
For Appellant(s) : Ms. S. Chakraborty, Advocate.
For Respondent(s) : Mr. P. Gautam, Advocate.
Date of hearing : 24th March, 2021.
Date of Judgment & Order : 30th June, 2021.
Whether fit for reporting : NO.
JUDGMENT AND ORDER
[1] This appeal has been filed by the original claimants laying
challenge to the award dated 18.03.2019 passed by the Motor Accident
Claims Tribunal, No.2 Gomati Judicial District, Udaipur in case No. TS
(MAC) 53 of 2014 awarding compensation of a sum of Rs.9,90,000/- with
6% annual interest thereon on account of the death of the Dulal Kanti
Saha alias Maran in a road traffic accident at Bagma in Udaipur on
09.10.2013.
[2] Facts
of the case, in brief, are as under:
On 09.10.2013 at about 11 „O‟ clock in the night Dulal Kanti
Saha alias Maran was returning home from Udaipur on his motorbike
bearing registration No.TR-03A-8903 along with his friend Balaram Saha.
When they reached near the bridge at Bagma bazaar, a speeding vehicle
bearing registration No.TR-03-3888 (Cruiser) hit his bike from his back.
As a result, said Dulal Kanti Saha slipped from his bike and received
severe injuries. Balaram Saha, his companion, also sustained injuries.
Both of them were taken to the nearby Tripura Sundari District Hospital
at Udaipur where said Dulal Kanti Saha was declared dead. His cousin
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brother Dipan Ch. Saha lodged a written FIR on the following day with the
Officer-in-charge of R. K. Pur police station at Udaipur alleging that as a
result of rash and negligent driving of the offending vehicle his brother
and his friend Balaram Saha received fatal injuries and after they were
taken to hospital his brother Dulal Kanti Saha was declared dead. Based
on the said FIR, R.K.Pur P.S case No.350 of 2013 under Sections 279,
338 and 304A was registered and after investigation Parimal Roy, Sub-
Inspector of police submitted charge sheet against Habirzur Rahman,
driver of the offending vehicle for having committed offence punishable
under Section 279,337,304 Part-II IPC.
[3] The wife, daughter and mother of the deceased filed a
petition at the Tribunal claiming compensation of a sum of Rs.45,60,000/-
for the death of said Dulal Kanti Saha in the said accident. Owner-driver
and insurance company were impleaded as respondents in the case.
During the pendency of the suit, the owner died. By way of amendment
of the plaint, legal heirs of the owner of the offending vehicle were
impleaded in the suit.
[4] The Tribunal issued notice to the respondents. The owner
(respondent No.1) pleaded in his written statement that his vehicle was
insured with the Oriental Insurance Company Limited (respondent No.3)
and there was policy coverage on the date of accident. The driver of the
offending vehicle (respondent No.2) by filing separate written statement
pleaded that the vehicle was owned by respondent No.1 and the said
vehicle was insured with the respondent No.3. It was further pleaded by
the driver of the vehicle that liability for payment of compensation would
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be discharged by the insurance company since the vehicle was insured.
The Oriental Insurance Company Limited on the other hand pleaded that
the accident occurred as a result of contributory negligence on the part of
the deceased who was driving his motor bike rashly and negligently. The
insurance company however, pleaded that payment of compensation was
subject to production of the current insurance policy, valid driving license
and valid documents of the offending vehicle.
[5] The claimants adduced the oral evidence of the claimant wife
of the deceased as PW-1, the evidence of one Ashish Ghosh as PW-2 and
that of Smti. Bakul Rani Saha, claimant mother of the deceased as PW-3.
The claimants also relied on as many as 7(seven) documents to establish
their claim. The respondents on the other hand did not adduce any oral
evidence. The original insurance policy certificate was produced by the
owner of the vehicle to establish that his vehicle was duly insured with
respondent No.3.
[6] In the course of trial the Tribunal framed the following issues:
"(1) Whether Dulal Knati Saha @ Maran, S/o. late Hari Das
Saha received injuries in a road traffic accident on
09.10.2013 at about 2300/23:30 hrs on Agartala Sabroom
road near Bagma Bridge, under R. K. Pur P.S and on the
same day he succumbed to his injuries in hospital due to the
rash and negligent driving by the driver of the said vehicle
bearing Reg. No. TR-03-3888(Cruiser).
(2) Are the claimants entitled to be compensated under
Motor Vehicles Act 1988. If so to what extent and who shall
be liable to pay the same."
MAC App. No.81/2019.
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On appreciation of evidence the Tribunal assessed and
awarded compensation to the claimants as under:
Sl. Amount
Heads
No.
01. For loss of dependency Rs. 8,40,000/-
02. For loss of estate Rs. 15,000/-
03. For funeral expenses Rs. 15,000/-
04. For loss of consortium to Rs.40,000 x 3
wife, daughter and mother = 1,20,000/-
of the deceased.
Total : Rs.9,90,000/-
[7] The said amount was awarded by the tribunal along with 6%
annual interest thereon from the date of presentation of the claim petition
till payment.
[8] The claimant appellants have challenged the said award
mainly on the following grounds:
(i) The tribunal has worked out the monthly income of the
deceased at Rs. 6,000/- whereas the deceased actually used
to earn Rs.30,000/- per month from his business.
(ii) With such meagre amount awarded by the Tribunal, it
would be impossible to maintain the family consisting of the
wife, mother and 13 year old daughter of the deceased who is
prosecuting her studies in school.
(iii) The compensation awarded by the Tribunal has become
unjust and unfair since the same is not based on proper
assessment of loss.
MAC App. No.81/2019.
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[9] In the course of his arguments, Ms. S. Chakraborty, learned
counsel contended that the guidelines formulated by the Apex Court in
various judicial pronouncements for determination of compensation in
motor accident claim cases were not followed by the Tribunal while
assessing compensation. Learned counsel therefore, urged this Court to
enhance the amount of compensation.
[10] Mr. P. Gautam, learned counsel appearing for the respondent
insurance company on the other hand argued that the Tribunal by an
elaborate and reasoned judgment awarded a just and fair compensation
to the claimants which does not call for any interference in appeal.
According to Mr. Gautam, learned advocate, claimants could not prove
their claim that monthly income of the deceased was Rs.30,000/-. It is
argued by learned counsel that bare assertion in the claim petition
regarding income is not sufficient to discharge the onus. Claimants must
have proved the income by adducing reliable evidence. In support of his
contention, counsel of the claimant has relied on the decision of the Apex
Court in Syed Basheer Ahamed and others Vrs. Mohammed Jameel
and Another; reported in (2009) 2 SCC 225 wherein the Apex Court
has held as under:
"21. ......................... It needs little emphasis that
insofar as the question of earnings of the deceased
is concerned, the onus lies on the claimants to
prove this fact by leading reliable and cogent
evidence before the Tribunal. A bare assertion in
the claim petition in that behalf is not sufficient to
discharge that onus."
Learned counsel, therefore, urged the Court for dismissal of
the appeal.
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[11] In the said judgment, the Apex Court also observed in
paragraph 20 that for arriving at just compensation, it is necessary to
ascertain the net income of the deceased available for the support of
himself and his dependants at the time of his death and the amount,
which he was accustomed to spend upon himself. This exercise has to be
on the basis of the data, brought on record by the claimant, which again
cannot be accurately ascertained and necessarily involves an element of
estimate or it may partly be even a conjecture. (Italics supplied).
[12] Wife of the deceased, Smti. Sangita Saha who has been
examined as PW-1 on behalf of the claimants has categorically asserted in
her statement that her husband who was 45 years old at the time of his
death and he was in good health and he used to earn Rs.30,000/- per
month. She was subjected to cross-examination on behalf of the
insurance company. In her cross examination, she made the following
assertion:
"I did not witness the accident.
It is not a fact that the accident occurred because of
rash and negligent driving of the motorbike bearing No.
TR-03A-8903 and not because of any fault of driver of
TR-03-3888 (Cruiser vehicle).
It is not a fact that the deceased was solely
responsible for the alleged accident on 09.10.2013.
It is a fact that I have not submitted any
document showing the source and extent of income of
my husband.
I have not submitted the Trade License showing
that my husband was Decorator.
It is not a fact that my claims under different
heads is not supported by documents."
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The said cross examination would reveal that the insurance
company did not give any specific suggestion to the witness denying her
statement about the income of her husband which was made by her in
her examination in chief.
[13] Mother of the deceased who testified as PW-3 also stated in
her examination in chief that her son was a decorator and he used to
earn Rs.30,000/- per month. She was also cross examined on behalf of
insurance company. It was not even suggested by the said insurance
company that deceased was not a decorator. It was not also suggested
by the insurer that he did not earn Rs.30,000/- per month from his said
occupation. The PW made the following statement while she was cross
examined on behalf of the insurance company.
"I did not see any accident alleged in this case.
It is not a fact that I have given evidence in this case
only for personal gain."
Since there is no denial that the deceased was a decorator by
occupation, assessment of his monthly income at Rs.6,000/- per month
was quite unrealistic and grossly unreasonable. Admittedly, the deceased
used to maintain a family consisting of his wife, mother and 13 years old
school going daughter. It would be quite improbable to hold that he
would maintain a family of 4 members with a meagre monthly income of
Rs.6,000/-. It is trite to say that minimum income of a decorator would
not be less Rs.12,000/- per month. Therefore, fresh calculation of loss of
dependency is necessary based on his income at Rs.12,000/- per month.
MAC App. No.81/2019.
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[14] Since he was 45 years old and a self employed person, as per
the judgment of the Apex Court in National Insurance Company
Limited Vrs. Pranay Sethi and others; reported in (2017) 16 SCC
680 an addition of 25% of the said amount of his monthly income shall
be made vide paras 59.3 and 59.4 of the judgment wherein the Apex
Court observed as under:
"(59.4) In case the deceased was self-employed or on a
fixed salary, an addition of 40% of the established
income should be the warrant where the deceased was
below the age of 40 years. An addition of 25% where
the deceased was between the age of 40 to 50 years
and 10% where the deceased was between the age of
50 to 60 years should be regarded as the necessary
method of computation. The established income means
the income minus the tax component."
[15] With 25% addition, his monthly income would come to
Rs.(12,000 + 3,000) = 15,000/- and annual income would be
Rs.1,80,000/-. As per the table in the judgment of the Apex Court in
Sarla Verma(Smt.) and others Vrs. Delhi Transport Corporation
and Another: reported in (2009) 6 SCC 121 multiplier of 14 would
apply in this case for determination of loss of dependency since the
deceased was in the age of 41 to 45 years. By applying the said
multiplier of 14, the amount of loss of dependency would come to
Rs.(1,80,000 x 14)=25,20,000/-. One third of the said amount i.e.
Rs.8,40,000/- would be deducted as per the decision in Sarla
Verma(supra) towards personal and living expenses of the deceased
(vide para-30) and after such deduction, the loss of dependency would
come to Rs.( 25,20,000 - 8,40,000)=16,80,000/-. With the said amount,
an amount of Rs.15,000/- would be added for loss of estate, Rs.15,000/-
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for funeral expenses and Rs.1,20,000/- @ Rs.40,000/- per head for loss
of spousal consortium of the wife, for loss of parental consortium of the
claimant daughter and for loss of filial consortium of the claimant mother
of the deceased. After such fresh calculation the compensation payable to
the claimants would be as under:
Sl.
Heads Amount
No.
01. For loss of dependency Rs. 16,80,000/-
02. For loss of estate Rs. 15,000/-
03. For funeral expenses Rs. 15,000/-
04. For loss of consortium to wife,
daughter and mother of the Rs. 1,20,000/-
deceased @ Rs.40,000/- per
head.
Total : Rs.18,30,000/-
[16] On the amount awarded by the Tribunal, the claimants would
get annual interest @ 6% from the date of presentation of the claim
petition till the payment is made and on the additional amount which
has been enhanced by this Court under this order the claimant would get
interest @ 6% from today till the payment is made. The insurance
company is directed to make payment of the whole amount within a
period of six weeks from today by depositing the amount at the Tribunal.
[17] Share of the minor daughter of the deceased and that of the
claimant mother of the deceased would be invested in fixed deposits for a
term of five years in a nationalised bank and the monthly income
generated from such income would be transferred to the individual bank
accounts of the mother of the deceased and the minor daughter of the
deceased. Since the daughter is minor, her mother (Smt. Sangita Saha)
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would be made her nominee and she would be entitled to draw the said
monthly income on behalf of her daughter which will be spent for the
welfare of her daughter including her educational expenses. 50% of the
share of the wife of the deceased would be released in her favour and
the rest 50% would be invested in fixed deposit in a nationalised bank
and the monthly income by way of interest generated from the said
investment be transferred to the individual account of the said claimant.
[18] In terms of the above, the appeal stands allowed and
disposed of. Pending application(s), if any, shall also stand disposed of.
Send down the L.C record.
JUDGE
Dipankar
MAC App. No.81/2019.
